Park Terrace Arms Corporation et al., Respondents, v. Nationwide Insurance Company, Appellant

Park Terrace Arms Corporation et al., Respondents, v Nationwide Insurance Company, Appellant. [701 NYS2d 390] [MAJORITY] —Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about February 3, 1999, which, upon the parties’ respective motions for summary judgment, declared that defendant insurer is obligated to defend and indemnify plaintiffs insureds, a residential cooperative and its managing agent, in an underlying action arising out of an assault by plaintiffs’ employee, the superintendent of the building, on a tenant/ shareholder, unanimously affirmed, without costs. Since plaintiffs’ employee was not acting within the scope of his duties or in any manner on plaintiffs’ behalf when he committed the assault, the incident was not intended or expected, i.e., it was an accident, from plaintiffs’ standpoint, and therefore a covered occurrence under the policy (see, Agoado Realty Corp. v United Intl. Ins. Co., 260 AD2d 112). We note that the subject policy, unlike those in the cases on which defendant relies, does not contain a provision specifically excluding from coverage claims arising from or based on an assault (see, Mt. Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347; U.S. Underwriters Ins. Co. v Val-Blue Corp., 85 NY2d 821). Concur—Rosenberger, J. P., Ellerin, Wallach, Lerner and Andrias, JJ.